Dr Jorge's blog

Thursday, 24 May 2018

The
last two posts started with the aim of proposing a way in which governmental
authority could realise the EGALITARIAN SHARED SOVEREIGNTY. They presented two
ways in which sovereignty may be shared: a) the claiming agents Israel and
Palestine “share in” sovereignty by each of them participating in all the
institutions in the third territory (executive, legislative and judicial powers);
and b) the claiming agents “share out” sovereignty by each party having sovereignty
over a different sphere.

Indeed,
we discarded the latter but draw some positive conclusions along the analysis:

1) the
disputed territories will have one legal system;

2)
this legal system will not be one of the existing ones;

3) it
will be created by the legislator;

4) Israel
and Palestine will “share in” sovereignty;

5) the
legal system will have certain notes (acceptability, humanity, effectiveness,
simplicity, and justice).

What
is clear is that the question related to law is a matter not of equality but of
acceptability to all parties by applying the EGALITARIAN SHARED SOVEREIGNTY. As
in the previous cases, the EGALITARIAN SHARED SOVEREIGNTY addresses the
controversies introduced when selecting the applicable law. In what is specific
to government and law, in the context of the Israel-Palestine difference, it
means:

Firstly,
the disputed territories will have an independent legal order based on pre-existent
systems, in the sense it uses what is best (so defined by its acceptability,
humanity, effectiveness, simplicity and justice) provided it coheres with the
rest of the system (egalitarian consensus principle and principle of
efficiency).

Secondly,
that all parties are involved in the administration (they “share in”
sovereignty). Therefore, the shares will be represented as bundles of rights and
obligations. In this case, the three agents have equal rights and obligations
to participate in every step in the creation, execution and application of the
law. Thus, as the second pre-requisite must be respected, the liberties of the
inhabitants of the disputed territories are protected. Following the general
aim of the model proposed here, the legal order would be divided into three
branches (one for each step in relation to the creation, execution and application
of the law). Thus, each branch should secure the representation of both Israel
and Palestine. Besides, in case of conflicts of law there would be a Superior
Tribunal or Higher Court with representatives of Israel and Palestine. The
details in respect of the election of the authorities and their internal
procedures would be reached in a new agreement that cannot contradict in any
sense the principles agreed in the original position.

Thirdly,
the rights of all the parties must be respected. Then, as all the agents will
participate in the making and decision process, the elected authorities of the disputed
territories would create, execute and apply law with the only limit being the
principles agreed in the original position. Therefore, in any instance in which
there was a contradiction between a norm and the agreement reached in the
original position, the contradictory norm would be automatically
invalid—safeguarding the interests of all the parties. Israel and Palestine
(through their representatives in the institutions of the disputed territories)
would have a further safeguard given by the veto power should their wishes were
being systematically overridden in the decision-making process used in the
institution.

In
summation, the previous paragraphs demonstrate how it is both possible and
advisable to deal with conflicts of law in a sovereignty dispute as a way of
solving the difference. By recognition of equal actual and potential rights and
burdens over the disputed territories (egalitarian consensus principle), each
agent (Israel and Palestine) would be in a relative similar situation,
including the inhabitants of the disputed territories. In particular, in regard
to the law, among several options, the establishment of an independent legal
system appears as a reasonable choice since it would secure the interests of
the population of the disputed territory and, at the same time, the presence
and equal relative position of both Israel and Palestine.

Although it would be
an independent legal system, it would be recommendable that the authorities in
charge of the creation, execution and application of law had representatives of
the all the involved agents. By doing so, there is a shift from equality to
acceptability. Therefore, it would give the legal system a permanent feature
that would support its predictability and would result in the stability of the
model as a whole since it would embrace the interests of all the parties and
would not leave any of them in a comparable disadvantageous situation
(equilibrium proviso). Indeed, the combined working of the legal system, and in
some ways the political one, seem to require less use of the EGALITARIAN SHARED
SOVEREIGNTY than other areas and more use of choosing and combining elements
from existing systems in order to maximise and have a more efficient running of
the system. But, these are still parts of the solution proposed here, the
egalitarian shared sovereignty in the form of a) egalitarian consensus; and b)
principle of efficiency that result in c) equilibrium amongst the parties.

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017.
Sovereignty Conflicts and International Law and Politics: A Distributive
Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Wednesday, 23 May 2018

In order to work
out the principles of the EGALITARIAN SHARED SOVEREIGNTY through these
authorities and institutions in Israel-Palestine, it seems reasonable to think of either granting
participation in all the institutions to every claiming party or to divide the
institutions amongst them (Israel and Palestine). In other words, Israel and
Palestine may “share out” or “share in” the sovereignty over the disputed
territories. The following paragraphs will introduce briefly each of these two
options and assess which one best addresses the difference.

Two
legal systems and one territory: to “share out”
sovereignty

I
develop in extenso this analysis in
my latest book Núñez
2017. What follows is a very brief review of why to “share out” sovereignty is
not a viable option for the Israel-Palestine difference.

This
solution assumes the parties decide to divide sovereignty amongst them. Suppose
that Israel was in charge of the judiciary, Palestine was in charge of the
executive power and people living in the disputed territories elected their own
Parliament or Congress. Is this a viable option? What conflicts can arise, in
particular in terms of law? If there were conflicts, what would be the way to
deal with them?

Clearly,
there would be not one but at least two legal systems with this way of
institutionalising the EGALITARIAN SHARED SOVEREIGNTY (in the example, the
legal system of Israel and that of Palestine). To have two legal systems in the
same territory will involve conflicts of law.

Indeed,
this is the crucial problem with shared sovereignty—arguably, a fatal one. What
legal system will be valid in the third territory? To what extent is it
possible that two legal systems are valid at the same time over the same
territory and in relation to the same population? What about the existence of a
new set of norms specially created for the third territory? Controversy is
clearly present here.

Division
of powers: to “share in” sovereignty

(Based on the Constitution of the
Principality of Andorra)In
choosing the way in which power will be shared in the disputed territories, the
possibilities are various. In this post, the representatives of the population
are divided into three branches: executive, legislative and judicial power.
Then, this choice offers an ample spectrum. Thus, it assumes the third
territory would have representatives divided in different functions and levels
to create, execute and apply law. The
territory in which both sovereign States will have equal sovereignty will
already have its own government and administrative organisation. The main
problem for a shared sovereignty paradigm to be developed and accepted by all
the involved agents and, at the same time, to avoid conflicts of law, is to
grant all of them a certain level of participation in the law making process.
In that sense, the model here opts for an eclectic vision by combining elements
of the classical legal systems and the fact that the source of law is multiple
rather than singular. In any case, the legal system for the disputed territory
would be autonomous in relation to those of the sovereign States part in the
original dispute. They would only participate through representatives in
certain areas to grant them equal presence and control over the issues
pertaining the third territory.There
may be many ways in order to realise the EGALITARIAN SHARED SOVEREIGNTY in what
has to do with government. The one presented below is only an example of its
application. Therefore, the agreement will have the face of a constitution, and
it will be alterable only with the consent of all the parties (only this meets
the EGALITARIAN SHARED SOVEREIGNTY requirements). A
compound executive power constituted by several representatives designated in
equal number by each sovereign State, and at the same time a government elected
by the population of the third territory. In other words, two (or more)
co-governors would be head of the third territory and would have joint and
indivisible authority with equal powers. On the one hand and out of theoretical
interest only, they would symbolically represent the shared values of the
enterprise. On the other hand, and in more practical terms, they would secure
an actual balance in the relationship between the sovereign States. Together
with the co-governors there could be a governmental body of authorities that
would secure a fair and just representation for the population of the third
territory. They would be in charge of the disputed territories administration. A
legislative power or council, that would be responsible for the creation of
applicable law, could either be elected by only the population of the third
territory or have also representatives from the two States. In the former case,
this body would have representatives elected directly by the population of the
disputed territories by universal, free and equal vote. To that extent, the
population would have their interests protected and the two sovereign States
would be equally situated, since neither of them would have any participation
in the legislative process. In the latter case, the population of the disputed
territories would still elect their representatives but the two sovereign
States would designate also delegates to participate in the legislature. A
judicial power elected as per internal procedures with lower and upper
magistrates and a Higher (and multi-competent) Court of several members, being
designated in equal number by each sovereign State and the third territory. As
the ultimate authority within the legal hierarchy in the third territory, the
Higher Court would secure the representation of all the involved agents. With this model the equal participation
of the Israel and Palestine and the defence of the interests of the population
in the disputed territories are granted. Administratively, the disputed
territories would be fully autonomous. The sovereignty would remain with the
two sovereign States so they would have an equal status.NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017.
Sovereignty Conflicts and International Law and Politics: A Distributive
Justice Issue. London and New York: Routledge, Taylor and Francis Group.Jorge
Emilio Nunez

Tuesday, 22 May 2018

This series introduces
TERRITORIAL DISPUTES and attempts to solve them as a matter of ideal theory.
That means we conduct a theoretical experiment to evaluate what reasonable
people would decide given some facts. When we addressed Kashmir, we centred the
attention on population (religion, ethnicity, etc.). When it was the time to
deal with the Falkland/Malvinas islands, we focused on territory (borders,
natural resources, etc.). In turn, with Gibraltar, the analysis was about
government and law.

The Israel-Palestine difference
if the first case study in this series to introduce all the elements by means
of applying the EGALITARIAN SHARED SOVEREIGNTY. So far, we have covered population
and territory. It is time to address government and law. By considering
government and law, we complete the assessment of our current understanding in
legal and political sciences of a “sovereign state.”

Post 6: Territorial disputes: State and its elements. LawGovernment
can be defined as a person, group of people or body that create and apply the
law for the population in a given territory. Together with population and
territory, it completes the necessary elements that constitute a minimal
political and societal organisation. Government offers some controversial
features in any TERRITORIAL DISPUTE. The following posts will review some of
these features using the Israel-Palestine difference to show their
implications. The focus will be only on the specificities about power share.
The main reason to proceed this way is that power sharing has many different
implications, and amongst other sub-elements law.

Government
and law:

The
globe offers a wide spectrum of examples in which although the form of
government differs, in all cases they are still States. There is no
controversial feature at this point. In the particular context of this TERRITORIAL
DISPUTE (Gibraltar), this sub-element does not offer controversy either.
However, other sub-elements part of any government may not be so straightforward.

If
sovereignty is not shared, then it is clear who elects representatives and
chooses them (the inhabitants if the territory is independent or the
inhabitants as part of a sovereign State). What happens when sovereignty is
shared? Then, there are two different issues: a) representatives and
administration; and b) law. It follows from this that the two most challenging practical issues raised by
shared sovereignty in relation to government seem to be:

·What sort of governmental arrangements shared
sovereignty requires;

and

·How governmental authority can be shared and yet be
workable.

In order to work
out the principles of the EGALITARIAN SHARED SOVEREIGNTY through these
authorities and institutions in Israel-Palestine, it seems reasonable to think of either granting
participation in all the institutions to every claiming party or to divide the
institutions amongst them (Israel and Palestine). In other words, the two ways in which sovereignty may be shared, in
principle, are:

·The relevant parties are all members of an
institution that possesses some form of sovereignty (for example, legislative
sovereignty).They “share in”
sovereignty by participating in its exercise. For example, they are all members
of the legislature.This form of shared
sovereignty does not divide sovereignty itself (the sovereignty of the
institution remains undivided).

·The relevant parties divide sovereignty amongst
them; i.e. they “share out” sovereignty.They might do so by each having sovereignty over a different sphere. Alternatively,
they might have overlapping authorities or identical authorities.

Tomorrow’s
post will start the assessment of these two options and combine both (the
EGALITARIAN SHARED SOVEREIGNTY and the elements mentioned above) to offer a
potential ideal solution.

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017.
Sovereignty Conflicts and International Law and Politics: A Distributive
Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Monday, 21 May 2018

What
would happen if another party with no part in the original Israel-Palestine
difference decided to invade the disputed territories? In the hypothetical
scenario a third party such as Iran, the United States, the United Kingdom or
Russia decided to invade these territories, who would defend them?

The
ways in which the situation may develop are as follows:

a)
both Israel and Palestine may remain neutral; consequently the new agent would
take over the territories if the inhabitants were unable to defend themselves;

b) one,
either Israel or Palestine, may respond to the invasion and defend the
territories;

c)
both Israel and Palestine may respond to the invasion and defend jointly or
independently the islands.

At the
same time, States have the right and are obliged to defend their own interests
and their population. Consequently, any act of defence is fair and just as long
as it is a result of an illegitimate threat or attack. However, in a
TERRITORIAL DISPUTE, it seems difficult to determine the one who could/should
be defending the disputed territory in the event of an attack on what appears
to be a common interest for all the involved parties.

In
addition to the way in which the parties would defend the third territory,there are two other crucial elements that
need to be agreed, even if joint defence was the case:

a) the
extent to which the burden can be made proportionate, with those with more of
the appropriate resources taking the larger share (if they can be trusted not
to turn their forces against the other two parties);

b) and
the extent to which one considers what combination of contributions will be the
most efficient, using, e.g., both the local knowledge of the people in the
territory, and the equipment best adapted to defending it.

Indeed,
if they take on sovereignty, they must take on the obligation to defend.
However, how would Israel and Palestine share the defence? The EGALITARIAN
SHARED SOVEREIGNTY addresses the three elements that seem to be crucial in
order to have shared defence: a) Resources; b) Training and opportunities; c)
Safety of the other two parties (how to avoid misuse of power). What does it
mean if the agents have different level of development? The differences in the
case of defence are numerous. For example, geostrategic location; economic
resources; level of military development; training and facilities; number of
troops; etc. In the case of Israel and Palestine, the differences are
self-evident. A combination of contributions can make these differences work
together in an efficient form.

In the
Israel-Palestine difference, it will be highly probable that the parties have a
different level of development in terms of their respective defence systems
(input-to-output ratio principle). Then, the egalitarian shared sovereignty can
be fulfilled in two ways: a) following the most efficient combination in terms
of contribution (principle of efficiency)—for example, using both the local
knowledge of the people in the territory (Palestinians), the geostrategic
location (Israel and Palestine), and the equipment, resources and any means
best adapted to defending it (Israel); b) the agent with the better comparative
situation—in whatever aspect—may contribute in developing the other parties or
granting them exclusive privileges (equilibrium proviso)—for example, Israel
could train Palestinian troops in exchange for the use of certain locations.

It is
clear that the egalitarian shared sovereignty aims only to achieve the same
level of opportunity and development for all the involved parties so they are
able to defend the third territory (not the territory that is already part of
the sovereign States). Thus, even if there were variations in the future in
terms of wealth status and defence development among the involved participants,
the reciprocal obligation would always be the same for all the agents. In other
words, to combine in order to to produce the most efficient result.

Next time: government and law in the
context of the Israel-Palestine difference.

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017.
Sovereignty Conflicts and International Law and Politics: A Distributive
Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Friday, 18 May 2018

It is
arguably a truism in international law and politics that an ultimate sovereign,
with a common legal bond or system of norms, will govern one territory
with population. What would happen if that one territory and population
had two ultimate and hierarchically equal sovereigns (legally speaking)
and, at the same time, two valid sets of norms?Would it be possible, for instance, that Israel and Palestine had
sovereign authority at the same time over Jerusalem?

If the
answer were positive, what would the consequences be—in terms of
territory, population, government and law?

So far, we
have introduced the Israel-Palestine difference in the context of this blog
series about TERRITORIAL DISPUTES.

Today I
include a short video to introduce myself, discuss a few points and share some
thoughts. Next week: territory (defence), government and law in relation to the
Israel-Palestine difference and now the EGALITARIAN SHARED SOVEREIGNTY would
apply to them to solve the dispute.

Previous posts of the
TERRITORIAL DISPUTE series (only about the Israel-Palestine difference below):

Thursday, 17 May 2018

Today’s post will cover
BORDERS (as a sub-element that has to do with territory) in the context of the
Israel-Palestine difference and introduce how the EGALITARIAN SHARED
SOVEREIGNTY applies to this issue.

Borders are volatile (to say
the least) in the already tense Israel-Palestine difference. With communities presenting
very different living standards and the myriad of checkpoints the situation
deteriorates on an ongoing basis. This past few weeks’ events are self-evident.

A general approach
previously used in the region (and in many others around the world by former
colonial powers imposing them to former colonies) has to do with partition
solutions. They work under the assumption that the hostilities between opposing
ethnic groups makes it impossible for them to live peacefully together in a
single state (Haklai and Loizides, ed., 2015).

“The territories contested
between Israel and Palestinians are the ones Israel conquered from Jordan in
the 1967 war, including those commonly referred to as the West Bank and East
Jerusalem (Israel unilaterally withdrew from the Gaza Strip in 2005 and makes
no ownership claim of this territory). Many Jewish Israelis, religious and
secular, view these territories as part of their ancient homeland, Eretz Israel (Land of Israel).”

In recent years, all the
solutions explicitly or implicitly suggest partition:

·The “two-state solution” presented by
President Bill Clinton during the Camp David Summit and Taba talks (2000).

·The Roadmap to Peace introduced by President
George W. Bush (2003) and endorsed by the United States, the United Nations,
the European Union, and Russia.

·The UN Security Council Resolution 1397
(2002).

·The UN Security Council Resolution 1515
(2003).

·The Arab Peace Initiative, endorsed by the Arab
League (2002 and 2007).

There
are many reasons to disagree with the partition solution. For an academic
reference see for example Laitin (2004), Sambanis (2000), Sambanis and
Schulhofer-Wohl (2009), and others.

The EGALITARIAN SHARED SOVEREIGNTY may
rule out extreme situations such as:1.Sovereignty
of the disputed territories to be totally in the hands of only one of the claiming
parties either Israel or Palestine.2.Existing
sovereignty should automatically continue, or that everything should remain in
a status quo.3.United Nations or any other party alien
to the dispute. Several problems immediately arise.

United Nations (UN): although UN aims
to grant sovereign equality amongst the Statesits own system reveals a contradiction: veto power in the
Security Council is only granted to certain sovereign States.

This may be translated (in the
perception of at least one of claiming parties, either Israel or Palestine) as
an unbalanced and unfair starting point to have negotiations, and with a
predictable result.

Not only does the Security Council
present these problems but also other UN organisations. Even the UN General
Assembly, at first glance a fair environment for sovereign States to
participate in, has been regarded as ineffective or irredeemably biased because
of the different bargaining powers of its members.

Finally, in cases of contested
sovereignty over populated territories, stateless people are not UN members.

Other parties: in terms of other parties alien to the
dispute (for example, the United States, the United Kingdom, Russia, the Arab
League) history is self-evident in demonstrating their policies in the region
have been far from successful, have taken little care about the local
population and their needs, and have been more (only) centred on their geostrategic
domestic policies rather than taking Israel and Palestine into consideration.

In
brief, in order to acknowledge the controversial features the EGALITARIAN
SHARED SOVEREIGNTY advises to remove the borders and any checkpoints in the
disputed territories. As we discussed when assessing population in the context
of the Israel-Palestine difference, by applying the EGALITARIAN SHARED
SOVEREIGNTY, the inhabitants of the disputed territories would be citizens of
both sovereign states, they would have a common passport (an
Israeli/Palestinian passport) valid in the disputed territories. In terms of religion,
as the second pre-requisite recognises basic non-political liberties, freedom
of movement and residence would be adopted at a constitutional level. The lexically
prior prerequisite of non-political liberties controls this.

A
reminder to the reader: First, we have maintained in all these posts that
Israel is de jure and de facto a state whilst Palestine is a de facto state. Israel would continue
having de jure and de facto sovereignty over any
non-disputed territories that are not part of the original difference. Israel
and Palestine, therefore, would share de
jure and de facto sovereignty only
over the disputed territories. That means that Palestine would have de jure sovereignty recognition (and all
that this implies).

NOTE: based on Chapters 5, 6 and 7, Núñez, Jorge Emilio.
2017. Sovereignty Conflicts and International Law and Politics: A Distributive
Justice Issue. London and New York: Routledge, Taylor and Francis Group.